US v. Lasalle Boone, No. 08-4668 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4668 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LASALLE BOONE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00145-RBS-FBS-1) Submitted: March 31, 2009 Decided: April 29, 2009 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew A. Protogyrou, Nicholas L. Woodhouse, PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Elizabeth Bartlett Fitzwater, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lasalle possession Boone with violation of the 21 was convicted intent to U.S.C.A. after a § 841(a)(1), trial of cocaine distribute jury base, in (b)(1)(A)(iii) (West 2000 & Supp. 2006), and possession of a firearm by a convicted felon, in violation Supp. 2006). erred in suppress He of 18 appeals, him leave to evidence and that the Under must established Fed. be by § 922(g)(1) asserting denying support his convictions. evidence U.S.C.A. that file the an district court is motion to insufficient to Finding no error, we affirm. Crim. P. 12, raised prior to trial district 12(b)(3)(C), 12(c). 2000 & untimely evidence R. the (West court. motions See or by Fed. to suppress the deadline R. Crim. P. A defendant waives the right to file a suppression motion if he fails to file the motion prior to the deadline set by the district court, unless he can establish good cause for the waiver. Fed. R. Crim. P. 12(e). This court has found good cause to excuse an untimely motion to suppress where, for instance, the delay in filing the suppression motion was caused by the Government s failure to turn over the evidence sought to be suppressed. See United States v. Chavez, 902 F.2d 259, 263-64 (4th Cir. 1990). This court will not disturb a district court s denial of leave to file an untimely motion 2 to suppress unless the district court committed clear error. See United States v. Ruhe, 191 F.3d 376, 385 (4th Cir. 1999); Chavez, 902 F.2d at 263. Accordingly, reviewing courts rarely grant relief from Chavez, 902 F.2d at denials of untimely suppression motions. 263 (recognizing that appellate courts generally deny relief from the denial of untimely suppression motions where the motion was made after the court-imposed deadline and the defendant proffered only a dubious excuse ); see Ruhe, 191 F.3d at 386-87 (holding that there existed no good cause to raise an untimely suppression issue where diligence discovered issue). After the the review of defendant information the could necessary record, we have with due to raise the that the conclude district court did not commit error, clear or otherwise, when it denied Boone leave to file an untimely motion to suppress. Boone also challenges the sufficiency of the evidence supporting his failed show to convictions his on the possession firearms seized in this case. of basis the that cocaine the Government base and the At the close of the Government s evidence and the evidence as a whole, Boone moved for a judgment of acquittal under Fed. R. Crim. P. 29. We review the district court s denial of that motion de novo. E.g., United States v. Uzenski, 434 F.3d 690, 700 (4th Cir. 2006). In assessing the sufficiency of the evidence, this court must determine whether the jury s verdict is sustained by 3 substantial evidence, taking the view most favorable to the Government, to support it. United States v. Pierce, 409 F.3d 228, 231 (4th Cir. 2005) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). reasonable finder Substantial evidence is evidence that a of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). evidence, this court In evaluating the sufficiency of the does not assess the credibility of witnesses and assumes that the jury resolved discrepancies in the testimony in the Government s favor. See United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). To convict Boone of possession with the intent to distribute cocaine base, the Government had to prove that he: (1) knowingly, intent to (2) possessed distribute it. the See cocaine Burgos, 94 base, F.3d (3) at with 873. the To convict Boone under 18 U.S.C. § 922(g)(1), the Government was required to prove that Boone: (1) was a convicted felon at the time of the offense; (2) voluntarily and intentionally possessed a firearm; and (3) that commerce at some point. the firearm Cir. 1992). in interstate See United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). constructive. traveled Possession may be actual or United States v. Rusher, 966 F.2d 868, 878 (4th The Government may prove constructive possession by 4 presenting evidence that the defendant exercised, or had the power to exercise, dominion and control over the item. Id. Moreover, possession need not be exclusive, but may be joint and can be established by direct or circumstantial evidence. States v. Schocket, 753 F.2d 336, 340 (4th Cir. 1985). United Although a defendant s mere presence at, or joint tenancy of, a location where contraband constructive is found possession, is United insufficient States v. to Morrison, establish 991 F.2d 112, 115 (4th Cir. 1993), where other circumstantial evidence . . . is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence will support such a finding, United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980) (internal quotation marks and citation omitted). Consistent with this principle, this court has held that the fact that permits an contraband inference is of found in a constructive defendant's possession. residence United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003). We have reviewed the record and conclude that the jury had sufficient evidence from which to infer and find that Boone had knowledge of and exercised dominion and control over the cocaine base and firearms seized in this case. In this case, prior to executing a search warrant at a residence on Vermont Avenue in Portsmouth, Virginia ( the Vermont Avenue residence ), law enforcement observed Boone 5 in front of the residence cleaning a vehicle. As a result of their search, law enforcement officials recovered cocaine base and various indicia of narcotics distribution, including United States currency, a digital scale, plastic bags and a razor blade, and a tin can with a false residence bearing bottom, that Boone s also from a bedroom contained name. papers Boone s wife, in the and Vermont personal who also Avenue effects occupied the Vermont Avenue residence, testified that the cocaine base and distribution indicia were not hers. Additionally, although Boone was not present at the Vermont Avenue residence when law enforcement officials began their search, he arrived there approximately thirty to forty minutes later, questioning what law enforcement officials were doing at his house. The jury also heard testimony that Boone alone leased a residence at the Shamrock Gardens Apartments in Chesapeake, Virginia ( the additional recovered. bedroom in Shamrock quantity The the of cocaine Shamrock Gardens cocaine base residence ) base was Gardens and the recovered residence from which firearms from an containing personal effects and papers bearing Boone s name. an were upstairs various The firearms were recovered from the residence s first floor living area, and the jury could infer Boone s access to them, as Boone was the sole authorized occupant of the residence and occupied it on a part-time basis. 6 This evidence was sufficient to allow a jury to infer and find that Boone had knowledge of and exercised dominion and control over the cocaine base and firearms recovered from the Vermont Avenue and Shamrock Gardens residences. the district court did not err in denying Accordingly, Boone s Rule 29 motions. Therefore, We dispense with we oral affirm the argument district because the court s facts judgment. and legal contentions are adequately presented in the materials before the court, and argument would not aid the decisional process. AFFIRMED 7

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